UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
January 27, 2012
AMY R. GURVEY,
LEGEND FILMS, INC. FORMERLY KNOWN AS LEGEND FILMS, LLC, JEFFREY B. YAPP, BARRY B. SANDREW, LEGEND3D, INC., AND LEGEND FILMS, LLC, DEFENDANTS.
The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
Order Denying Plaintiff's Ex Parte
Application for Reconsideration
[Doc. No. 139]
The Plaintiff, Amy Gurvey, an attorney representing herself in the instant action, filed an ex parte declaration and motion, [Doc. No. 139], to vacate Magistrate Judge Skomal's October 3, 2011 Order, [Doc. No. 120] denying reconsideration of disqualification and discovery. The Defendants subsequently filed an opposition to the Plaintiff's motion. [Doc. No. 142.] The Court has reviewed the Plaintiff's motion and finds that is in fact an objection to Judge Skomal's Order under Rule 72(a) of the Federal Rules of Civil Procedure. Based upon the record, the parties' moving papers and for the reasons set forth below, the Plaintiff's objection is OVERRULED.
On July 11, 2011,*fn1 the Plaintiff filed an ex parte application, [Doc. No. 103], seeking: (1) to extend discovery, (2) mandate production of documents from Defendants; (3) an order granting Plaintiff the right to appear telephonically; and (4) an order granting Plaintiff expedited electronic filing privileges for this lawsuit. The Plaintiff also opposed Defendants' request to extend the deadline for expert designations. On July 8, 2011, Defendants filed an opposition to Plaintiff's ex parte motion. [Doc. No. 101.]
On July 13, 2011,*fn2 the Plaintiff filed a motion, [Doc. No. 107], to disqualify Magistrate Judge Skomal for his failure to properly notify her of the cancellation of the Mandatory Settlement Conference ("MSC") that was set for July 7, 2011, which caused her to unnecessarily travel from New Jersey to San Diego. The MSC was vacated on June 27, 2011, [Doc. No. 97], in response to a declaration from the Plaintiff on June 23, 2011, [Doc. No. 96], requesting that the Court extend discovery, compel production of certain documents by Defendants and allow Plaintiff to appear telephonically for all future appearances.*fn3 On July 15, 2011, Magistrate Judge Skomal issued an Order, [Doc. No. 109], denying Plaintiff's Ex Parte Motion, [Doc. No. 107], for Expedited Hearing and to Disqualify Magistrate Judge.
On July 19, 2011,*fn4 Plaintiff filed another ex parte motion to extend discovery deadlines to September 1, 2011, opposing Defendants' ex parte motion to extend expert deadlines, and requesting expedited rehearing on discovery during the week of July 11. [Doc. No. 112.] The Defendants filed a response in opposition to Plaintiff's second ex parte motion on July 19, 2011. [Doc. No. 113.] On July 29, 2011, Magistrate Judge Skomal issued an Order: (1) granting Defendants' Ex Parte Motion to Extend Expert Designation, [Doc. No. 99]; (2) granting-in-part and denying-in-part Plaintiff's Ex Parte Motion to Extend Discovery, [Doc. No. 103]; and (3) denying as moot Plaintiff's Ex Parte Motion to Extend Discovery Deadlines, [Doc. No. 112], and extending the discovery deadline to September 1, 2011. [Doc. No. 114.]
On September 8, 2011,*fn5 the Plaintiff filed another ex parte application, [Doc. No. 116], in which she requested: 1) the Court extend fact discovery until October 15, 2011; and 2) reconsideration of Judge Skomal's decision not to recuse himself. In her moving papers, Plaintiff contends that she informed the Court at the MSC that she could not complete fact discovery until October 2011. The Court rejected the Plaintiff's contention and denied the Plaintiff's request for another extension of time to complete discovery on October 3, 2011, Doc. No. 120, because the Plaintiff's prior requests only sought an extension of fact discovery to August 31, 2011 and the Court granted Plaintiff until September 1, 2011. The Court also denied Plaintiff's request for reconsideration because the Plaintiff has not presented the Court with newly discovery evidence, demonstrated how the Court committed clear error, or presented the Court with an intervening change in controlling law. See Doc. No. 120, at 4.
On October 7, 2011, the Plaintiff filed a notice of appeal, Doc. No. 121, of Magistrate Judge Skomal's Order of October 3, 2011, which was dismissed by the Ninth Circuit for lack of jurisdiction on December 12, 2011, Doc. No. 145. On October 27, 2011,*fn6 the Plaintiff also concurrently filed the current objection, Doc. No. 139. Defendants filed an opposition to the objection, Doc. No. 142.
Currently before the Court is the Plaintiff's objection to Magistrate Judge Skomal's October 3, 2011 Order, Doc. No. 120, denying Plaintiff's initial requests and subsequent ex parte requests for reconsideration of discovery extensions and his disqualification. Under Rule 72(a) of the Federal Rules of Civil Procedure, the district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law. The Plaintiff argues that Magistrate Judge Skomal's October 3, 2011 Order denying reconsideration/re-argument of the Plaintiff's motion to disqualify Judge Skomal pursuant to 28 U.S.C. section 455 for ADA violations, bias and abuse, to extend discovery and for an extension of time to retain new counsel should be vacated. The Plaintiff argues the October 3, 2011 Order should be vacated because: (1) the June 13, 2011 MSC should have been conducted on the record;*fn7 and (2) Magistrate Judge Skomal should not have ruled on the motion for disqualification under 28 U.S.C. § 455.
Plaintiff alleges that she informed Magistrate Judge Skomal at a MSC that she could not complete discovery until October 2011. The Plaintiff argues that because the MSC was not held on the record, the Court should reverse the October 3, 2011 Order and disqualify Magistrate Judge Skomal. [Doc. No. 139, p. 10.] The Plaintiff's contention that the absence of a record or transcript for the MSC is somehow sufficient to support her objection to Magistrate Judge Skomal's October 3, 2011 Order is without merit. As the Defendants aptly point out in their opposition, the Court is not obligated to record the proceedings of an MSC, especially when a settlement is not reached.*fn8
The Plaintiff's argument with regard to her motion for disqualification under 28 U.S.C. § 455 is equally unpersuasive as this section clearly requires a Magistrate Judge to rule on a motion seeking his disqualification.*fn9 Judge Skomal properly decided this motion because a motion for disqualification under 28 U.S.C. §455 "is addressed to, and must be decided by, the very judge whose impartiality is being questioned." In re Bernard, 31 F.3d 842, 843 (9th Cir.1994). Furthermore, in considering disqualification motions, "judges are not to recuse themselves lightly[,]" and should participate in cases assigned if there is no legitimate reason for disqualification.*fn10 This Court's review of the record reveals no evidence that would call into question Magistrate Judge's Skomal impartiality.*fn11
With regard to Plaintiff's September 1, 2011 request to again extend discovery, the Court notes: (1) that none of the Plaintiff's written requests prior to September 1, 2011 sought an extension beyond August 31, 2011, and (2) that the Court granted Plaintiff an extension until September 1, 2011. The Court has inherent authority and discretion to manage its dockets. In the absence of evidence or efforts on behalf of the Plaintiff to complete discovery or good cause for her failure to comply with the September 1, 2011 deadline, the Court finds Magistrate Judge Skomal's denial of the Plaintiff's request to again extend discovery, without any explanation or a showing of good cause by the Plaintiff, was not clearly erroneous or contrary to law.
As for the Plaintiff's request for an extension of time to retain new counsel, the Court notes that:
(1) the Plaintiff is an experienced attorney; and (2) the Plaintiff has twice in the course of this case either discharged or refused to communicate with prior counsel, thereby causing counsel to file motions to withdraw, Doc. Nos. 43 and 82. In light of the Plaintiff's request to substitute herself as counsel in this case in June of 2011, Doc. No. 93, and the Plaintiff's failure to demonstrate any efforts in the preceding months to retain counsel, the Court finds Magistrate Judge Skomal's denial of the Plaintiff's request for an extension of time to retain new counsel was within Judge Skomal's discretion and was not clearly erroneous or contrary to law.
For the reasons set forth above, this Court finds that the Plaintiff has failed to demonstrate that Magistrate Judge Skomal's October 3, 2011 Order was clearly erroneous or contrary to law, and as such, the Plaintiff's objection, Doc. No. 139, is hereby OVERRULED.
IT IS SO ORDERED.